Speaking or Silencing: it's not about free speech.



Much of the recent debate about Free Speech in New Zealand seems to have quietly and conveniently avoided the key issue: it's not about who is free to speak, or not, it's about who controls the speakers' platform.


Try to pay attention. I wrote a huge Master of Public Policy thesis on this topic. I'll do my best to boil it down to a few key points, and we'll get to the current situation, eventually, and what it all means at the end.

In New Zealand, under our current broadcasting policy framework, the right to free speech (or rather the right to control free speech) is sold to the highest bidder.  That means broadcast frequencies used by radio and television are bundled into Time, Area, Spectrum (TAS) rights and sold by auction in the market, or pseudo-market.  I once bought one for a dollar (but that's another story).

Now, when you buy a TAS frequency bundle, you are not buying a physical thing. You are buying the ability to propogate radio frequency waves.

That means you're buying the ability to 'speak', exactly as if you were buying the right to propogate sound waves in a particular place at a particular time.  Or, more accurately, you are buying a speakers' platform and the right to decide who can speak on that platform.

Question: should that right be primarily a 'property right', tradeable in the market to be bought and sold by people seeking primarily to enrich themselves by advertising to an audience?  Or is it primarily a social and political right, which confers both power and responsibility on the right-holder, to serve the needs of citizens to speak, and to hear, about how we collectively construct and maintain a good society (and how we define a 'good society')?

Answer: in New Zealand, at the moment and for the past 28 years, ever since the Broadcasting Act and the Radiocommunications Act were assented in 1989, it has been primarily a property right.

The principal exception to that rule is the radio and television frequency packages allocated to Māori, following a Waitangi Tribunal claim.  Please don't argue with me about the merits of this: I wrote the Statement of Claim, and it was upheld by the Waitangi Tribunal. Essentially Māori have the right to 'possess' Te Reo Maori, as a taonga under Article II of the Treaty, and you cannot 'possess' your language (in the 20th and 21st Century), if you cannot broadcast in it.

Following a number of other court actions and initiatives, and after much struggle and debate, Maori were able to broadcast on Māori-controlled radio stations, and eventually a television channel.  They were resisted, every step of the way, by a National Party government (Bolger and Shipley in charge, Maurice Williamson as Minister of Broadcasting).

Until that claim was upheld, nobody had suppressed the right of Māori to speak, or to speak in their own language. They could do that in private or on the marae; out of sight, and out of mind, of other New Zealanders.  They were denied a public platform to speak on, from which others could hear them speak. Also in schools, but that's another story.

Let's bring this back to the current 'free speech' debate. The Mayor of Auckland and the Vice-Chancellor of Massey University control (more or less) certain speakers' platforms. The platforms are relatively unimportant, because they hold only small audiences.

But the question of who has the power to control various public speakers' platforms, and how they use that control, is profoundly important. There is a certain irony in this free speech debate when, under New Zealand's neo-liberal broadcasting and media policy settings, our mainstream media is controlled by a few privately owned oligopolies, principally:
  • NZME, which controls a stable of national and regional newspapers including the NZ Herald, as well as various radio stations, including Newstalk ZB.
  • Mediaworks has a television channel and numerous radio stations amongst it many brands.
  • Bauer Media owns a large stable of magazines including Womens Day, the NZ Womens Weekly, and the Australian Womens Weekly.
In economics, this is called 'monopolistic competition': a situation where a small number of corporations each own a variety of brands.  Consumers have the impression that there's competition, variety, and diversity in the marketplace, serving the needs of different customer groups.  But the reality is that, behind the scenes, these brands are controlled by a small group of powerful actors (an oligopoly).

Of course, the same more or less applies to internet platforms including Facebook, YouTube and Twitter.  More, because these platforms have global reach; and less, because they are not regulated in the same way that broadcast and print media are, or have been.  

You could say these platforms are not really under anybody's control; the owners disavow their responsibilities for controlling the speakers' platform, and territorial governments haven't worked out how to regulate open platforms of this sort, let alone a global platform requiring global regulation. 

China has. The Chinese government understands exactly how important is the control of information and ideas to the maintenance of a 'good' society. Although in their case 'good' could be defined as under the control of the Communist Party, whether you like it or not.  

But I'm not criticising China for that, because in New Zealand we have effectively surrendered control of mass media to a small oligopolistic group who are also acting in their own interests, whether you like it or not.  I'm pretty sure that's not good either, and I'm uncertain whether it's much better.

Back to that free speech debate, again. Here's another question or three: 
  • Is it a good idea for New Zealand to allow its mainstream media to be under the control of a self-interested oligopoly? 
  • Why haven't any mainstream media journalists even tried to address this issue in the context of our current free speech debate?
  • Why haven't any of our politicians spoken out about the issue of 'Platform Control', either?
If you're a journalist have the right to speak freely on the topic. But don't have to answer those questions, if you want to keep your current job. Or ever work as a journalist in New Zealand again (or Australia for that matter). You don't have to be the Chinese Communist Party to exert subtle but very significant control over the ideological agenda, and those who re/produce it.

New Zealand's Commerce Commission disallowed the StuffME merger (the merger of NZME and Fairfax Media), not just because it would create a near-monopoly in the market for advertising, but because of the political and social consequences. 

I'm not even sure they were legally allowed to do that by the Commerce Act, but I am very, very, grateful that they did.  Because allowing one one organisation to control that much of the 'platform' would be incredibly dangerous for freedom of speech.  

It's a pity our the Broadcasting Act and Radiocommunications Act don't place restrictions on media and cross-media ownership, as many other jurisdictions have or still do. And it's a great pity that New Zealand does not have a fully-fledged public broadcasting service to counteract the power of the privately owned media oligopolies. 

Wonder why that is? Go back and start reading from the beginning, but mroe carefully this time.

Anyway, the recent debate is not really about the 'principle' of free speech.  

It's about who controls the speakers' platforms, and how much, and how, they exercise that control.

Canadian proto-fascists, and Don Brash, are perfectly free to speak in New Zealand. In private venues, on street corners, on YouTube or Facebook. That's partly because we have a good Bill of Rights Act, and partly because we haven't chosen to regulate internet access in the way that China has.  

They are exactly as free to share their views, as Māori were to possess their language, before they won the right to broadcast in it. 

Having a right to free speech is not the same as having a 'right' to have their views amplified on mainstream media (which is one of the things they like to complain about under the 'free speech' banner). And they do not have a right to silence or mute those who disagree with them (which is the other thing they complain about as a constraint on their freedom of speech).  

Nor do they have a 'right' to be heard on other platforms where the owner/controller of that platform decides that their views are: 
  • Already well known, and undeserving of further attention, and/or;
  • Not in the interests of creating and maintaining a 'good' society (as they see it), or;
  • Incompatible with their platform's brand, or;
  • Likely to impose unreasonable costs, for their institution; to maintain a safe environment, when some speakers, their supporters, and their opponents all choose to exercise their rights to freedom of speech and freedom of assembly in the same place at the same time.
The last of these has been treated rather dismissively in our free speech debate, but it's far from irrelevant. We allocate radio frequency TAS rights to some people, and not others, to avoid cross-channel interference that would, if it were widepread, destroy the broadcasting industry and the value of broadcasting for its audiences.  In other words, these speakers' platforms are carefully separated, and allocated to different speakers, so they don't clash.

Let's talk about recent events for a bit, in that context. I actually support Phil Goff as Mayor of Auckland, saying he does not support Canadian racists using council facilities for their speaking engagement, and Jan Thomas for cancelling a seminar with Don Brash at Massey University.  

In both cases, the speakers' views are well-known already, and available to be heard elsewhere. Those views are 'off-brand' for the institutions they represent. And the potential for a clash between one group and their opponents, both exercising their rights in the same place at the same time might have conceiveably created an unsafe environment at their institutions' facilities.  

Jan Thomas's case can be differentiated, because of course a university should provide and protect freedom of thought and expression. But that freedom is for academics and students, not for any member of the public who thinks they have something useful to say. She controls the platform, and used her 'editorial' responsibility in a way that reflected and supported the interests of the institution, as she saw it. 

That may have been a mistake, because just about everybody in the media and politics then condemned her for doing so.   But not so many politicians or leader writers have been so quick to question and attack the editorial decisions of intitutions that have far greater power and, arguably, greater responsibility: the three corporations that control the vast majority of our mass media.

Now Pay Attention

Don Brash thinks that Te Reo Māori has no place on Radio New Zealand. He would silence Māori voices on that platform, if he had his way.

But why should his views have a place on that platform?  He is perfectly free to write pamphlets of his assimilationist views, and stuff them in his neighbours' letter-boxes. Nobody is suppressing his Freedom of Speech.  So why is it an issue?

Because this debate is not about speech, it's about attention.  Attention is a scarce and valuable resource.  When you sit down to read a newspaper or watch television you are 'paying' attention to one thing and not another. If the media channel is supported by advertising, it is 'taxing' your attention by capturing a portion of it, and then selling that portion to advertisers.

So, when we say of free internet services that you're not paying for the product because 'you are the product', what we mean is that your information is the immediate product, and your information allows an advertiser to target your attention (the product they are buying). And often more accurately and effectively than the mass media can.

For a politician, attention is oxygen. For the media outlet, attention is revenue. And increasingly, media outlets include social media 'celebrities' and people providing YouTube channels.

In a competitive media market, there is a lot of 'attention-seeking' behaviour going on. And with the explosion of online services over the past decade or so, the media markets are becoming increasingly competitive. Online platforms like Facebook, Twitter, Instagram, compete with each other at a global scale, but each hosts white-hot competition for attention among users of its own platform. 

Now, there are essentially two strategies for garnering attention: being delightful and being inappropriate. I'm going to confess that I explained this theory to Sean Plunket during last year's election campaign, in an email titled "Attention is Oxygen". I'm sorry I did that, but the point is valid. 

 An attention-seeking child can learn to sing, dance, tell jokes, or do a host of things that attract positive attention. Or they can be loud, angry, inappropriate, of violent. Whatever works - they need attention and they will get it, however they can.

Politicians, radio hosts, opinion columnists and Facebook users are essentially no different.  It's bascially a choice between posting videos of cats doing cute stuff, or being Alex Jones: if it gets likes and clicks, you are getting attention.  

Jacinda Ardern is delightful. Having a young mother as Prime Minister is delightful.  The Labour Party's campaign relaunch at the Auckland Town Hall in August 2017 was delightful. But it's a hard thing to do, and to maintain - especially when your political opponents are working as hard as they can to find reasons why it's not.

Unfortunately, it's easier to get attention by being confrontational or inappropriate than it is by being delightful.  And it's easier to sustain, because you're not raising expectations that might lead to disappointment later.  In fact it's easier to keep going one step further, being more and more inappropriate, so the audience stays in thrall to its own horrid fascination with what you might do next. 

This is essentially the secret to Donald Trumps' success. And Paul Henry, and just about every 'shock jock' who has ever been on radio.

And this is exactly what our Canadian alt-right racists, who complain about being denied their rights to free speech, are on about: they crave attention. They demand attention.  They want us to pay more attention to them.  They actually have ample of 'freedom of speech', but they think they're just not getting enough attention.

Free Speech and Attention

Complaining about not having freedom of speech, as it turns out, is a good strategy getting more attention.  

Good and worthy journalists, academics, policy-makers, and concerned citizens, know how important freedom of speech is in a democratic society.  It is an issue that commands their attention, and thus it commands our collective attention.  As it damn well should, because it is an incredibly important issue. We should be paying much more attention to it. 

What we should be paying attention to is who gets heard and who doesn't. Who is allowed on the speakers platform and who isn't. The particular circumstances of a couple of public speaking engagements by a few attention-seekers spouting inappropriate views, is profoundly uninteresting and a waste of our precious attention.

We live in a democracy. And if we want to continue living in a democracy, all of us must pay some of our attention, at least some of the time, to what our elected representatives and other people in power, are saying and doing: what policies they have, and intend to implement.  Whether their polices will serve our own particular interest, and the interests of our country as a whole. And whether they actually have the intention and ability to deliver those policies.

If we don't, then we won't know whom we are voting for, or what we are voting for, and our votes might as well be useless.

A final more questions, then. Public policy questions: 
  • If all mass media platforms control, to a greater or lesser extent, who is heard and who isn't, then on whom should we confer that control how should we confer it?
  • Given that we have created property rights out of the right to speak on these platforms (which is also the right to gather up and sell our attention to advertisers), and we have sold those property rights to the highest bidder, has that policy improved our democracy or made it worse?
  • If the person who controls a platform fails to exercise control responsibly (either by unreasonably restricting access to the platform, or by providing a platform for 'inappropriate' attention-seekers at the expense of 'delightful' attention-seekers), what should we do about that?
In 1996, I wrote a journal article for Continuum, the Australian Journal of Media and Society, titled "Giving/Taking Buying/Selling, Speaking/Silence: Te Reo Māori in prime time". It explored the difference between allocation based on the tikanga Māori principles of reciprocity and sharing, with neoliberal principles of market exchange.  

Each has its merits, in different contexts.  But the question we need to ask ourselves, now, is whether our media policy settings should regard the speaking platform (or Paepae). 

Is the Paepae to be a place that promotes conversation, reciprocal sharing of views, a meaningful and dialogue that engages citizens in the project of democratic governance?

Or should we continue with the marketplace approach, and offer the speaking platform to whoever can get the most attention, by whatever means, or is willing to outbid the rest of us, for the right to speak?

Can we have that debate. Please?

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